To defend or not to defend: the flexibility of the doctrine of abuse of process in duplicative class action proceedings

In the context of substantively identical class actions launched in Ontario and Québec, the Ontario Divisional Court in Kirsh v. Bristol-Myers Squibb, 2021 ONSC 6190 (Kirsh), upheld a lower court’s finding that the parallel multijurisdictional proceedings did not constitute an abuse of process and may proceed in tandem. This finding was largely a consequence of the class action defendants’ failure to oppose an authorization motion in Québec and, subsequently, its choice to strongly defend its identical counterpart in Ontario.

This decision serves to remind class action defendants of the importance of remaining active participants in duplicative class proceedings across jurisdictions to avoid the risk of having to litigate identical claims and face potentially inconsistent results.

Procedural history

These cases are proposed class proceedings against a number of manufacturers of two atypical antipsychotic medications, alleging that they led to several concerning and harmful side effects amongst their users.

The origins of this action date back to June 2016, when a group of plaintiffs in Ontario issued a statement of claim which sought to certify a national class action (the Ontario action). In the Ontario action, the plaintiffs advanced claims of negligence, failure to warn and conspiracy. A parallel class action was commenced in Québec roughly six months later, on December 12, 2016 (the Québec action). The Québec action exclusively pleaded negligence and contained a longer class period than that in the Ontario action. The Québec action was scheduled for an authorization motion on November 7, 2019.

Two days prior to the authorization motion hearing, the Québec action was amended to add a claim for civil conspiracy and to shorten the class period. These amendments rendered the Québec action virtually identical to the Ontario action in substance. The authorization motion proceeded unopposed, and the Québec action was formally authorized on December 12, 2019.

The certification hearing for the Ontario action proceeded a few months later, in March 2020, before Justice Morgan. The defendants brought a motion to stay the Ontario action as an abuse of process relying heavily on the duplicative nature of the Ontario action in relation to the recently authorized Québec action. The defendants vigorously and robustly defended the certification motion in Ontario by presenting numerous expert witnesses and complex scientific data, conducting thorough cross-examinations and filing detailed written submissions.

The motion to stay is refused

Justice Morgan ultimately certified the Ontario action. While he acknowledged that the Ontario action largely mirrored the amended and authorized Québec action, he found that this did not constitute an abuse of process.

Justice Morgan highlighted the importance of considering the history of the proceedings. Firstly, when strictly considering the chronological sequence of events, the Ontario action was commenced prior to the Québec action. This leaned against the suggestion that the Ontario action was duplicative. Secondly, and as alluded to above, Justice Morgan put considerable reliance on the fact that the defendants did not oppose the amended Québec action whatsoever. This was in stark contrast to the robust defence seen in the Ontario action. From Justice Morgan’s perspective, this strategy suggested that the defendants were seeking to stay the Ontario action to “[ensure] that they will go to trial on the merits with what they hope is the ‘least formidable foe’”.^[1] Ultimately, Justice Morgan found that the Ontario action was commenced for legitimate reasons and continued to have a legitimate reason to proceed.

The defendants appealed this decision, arguing that there is a presumption that a duplicative class proceeding should be stayed unless plaintiffs can demonstrate that there will be a benefit to the class in allowing both matters to proceed.

The role of the doctrine of abuse of process in duplicative class actions

The Divisional Court upheld Justice Morgan’s refusal to stay the Ontario action.

As a preliminary point, the Divisional Court emphasized that duplicative proceedings are not prohibited in and of themselves. The lack of a “hard and fast rule” against these types of proceedings is well established across Canadian jurisprudence. While the Divisional Court acknowledged that these types of proceedings may not be ideal given the risk of inconsistent results and wasted resources, there is no presumption or rule barring them from proceeding entirely in appropriate circumstances.

Therefore, courts are required to apply their discretion and judgment in determining whether an action of this nature should proceed. This analysis is a contextual, fact-specific and holistic one which considers a variety of factors such as the relationship between the proceedings and the procedural history underpinning the matter.

The Divisional Court highlighted a number of factors that may be relevant in determining whether a duplicative class proceeding ought to be stayed. For instance, courts are encouraged to consider whether either class action includes issues, remedies or class members not included in the other — whether strategically or because of the limits on the territorial or subject-matter jurisdiction of one of the courts.^[2] In addition, courts should be alive to the risk that rival class actions may allow defendants to settle the certification motion or class action with the least formidable foe or lowest bidder.^[3] The principle of comity and the risk of forum shopping should also be considered when determining a possible abuse of process.^[4] In short, while the benefits to class members should certainly be considered, as was argued by the appellants, it should not be where the analysis begins and ends.

In addition to a thorough analysis on the case-by-case approach that courts should apply when considering parallel multijurisdictional class actions, the jurisprudence also emphasizes the deference that should be owed to a motion judge’s discretionary decision on the issue of abuse of process. In its decision, the Divisional Court noted this deference and ultimately relied on the findings previously made by Justice Morgan.

Key takeaways

The decision in Kirsh is critical for class action defendants, as it leaves open the possibility for parallel and multijurisdictional certified class actions to proceed simultaneously. The emphasis on the defendants’ inaction in response to the Québec action in Kirsh should send a signal to class action defendants that they must remain mindful of the risks associated with not contesting proceedings in one jurisdiction where there is an intention to defend a substantially similar claim elsewhere.